If you are considering filing for divorce in Maryland, you may have seen the terms “absolute divorce” and “limited divorce” and wondered which one you need. Asking for the wrong type of divorce could delay the resolution of your case, or even cause your complaint for divorce to be dismissed, so it is important to understand the difference between the two types of divorce, and to work with an experienced Maryland divorce attorney to make sure you do everything to ensure your filings are in order.
In Maryland, an absolute divorce is what most people mean when they say they are “getting divorced.”
An absolute divorce is the legal process that:
Any competent adult can enter into a marriage, but not everyone can immediately file for an absolute divorce. Instead, Maryland divorce law sets out requirements, called “grounds”, that must be met when a complaint for absolute divorce is filed and proven before a judgment of absolute divorce can be signed by the judge.
There are two types of grounds for an absolute divorce: fault-based and “no-fault” grounds. The fault-based grounds include:
There are also two “no-fault” grounds:
In “no fault” cases, it doesn’t matter why your relationship broke down. You don’t have to prove that either spouse did anything wrong.
The 12-month waiting period included in Maryland no-fault divorce and several of the fault-based grounds can create practical and financial problems. Where a household and lifestyle were built based upon two incomes or where one spouse was the primary wage earner and the other the primary caregiver, it can be difficult to spend an entire year apart, supporting yourself, paying all the bills, and waiting out the clock. When children are involved and parents are unable to work together, the year-long separation can also create visitation problems and strain the parent-child relationship.
The Maryland mutual consent divorce rules were added in 2015, to give parties a short-cut to finalizing their divorce if they had already worked out the division of their assets and their affairs. Originally, mutual consent divorce only applied to couples without children. However, in 2018, the Maryland legislature expanded Mutual Consent Divorce to permit parents who agreed on issues of legal and physical custody, visitation, and child support to divorce with a lengthy waiting period.
Completing the mutual consent divorce process isn’t easy. It shifts the responsibility of resolving your property and custody issues off the court and onto you and your spouse. If either of you ask the court to set aside the settlement before an absolute divorce decree can be entered (and the Court agrees there is a valid reason to do so), you may need to start over from the beginning. The Court could refuse to set aside your agreement. You might also be turned away because your request for a mutual consent divorce or your written agreement doesn’t meet the mutual consent law’s requirements. If you are trying to avoid the waiting period and resolve your marriage quickly and efficiently, you would benefit from working with a divorce attorney who can make sure you consider all the possible shortcomings of your agreement, and submit all the right forms to the court.
What Maryland calls a “limited divorce” isn’t really a final divorce at all. Instead, it is how couples can get a legal separation in Maryland. It can be filed based on the grounds of:
Just like in an absolute divorce, desertion can be actual or constructive. The biggest difference is that there are no waiting periods to file a limited divorce in Maryland - you can file once you have been “separated” for even a single day.
You do not need a limited divorce to separate from your spouse and start the 12-month waiting period for filing a complaint for absolute divorce. Separation happens any time you and your spouse stop living together and stop having intimate relations. However, a limited divorce allows you to get the court’s help resolving how you and your family will live during that separation.
A limited divorce allows the court to direct the course of the parties’ separation and provides for relief that can’t wait for 12-months. Once a party files a Complaint for Limited Divorce, the Maryland family court judge assigned to the case can:
A limited divorce does not end your marriage. Even after you have completed the limited divorce process, you are not yet eligible to remarry. Also, a limited divorce does not stop one spouse from being entitled to property accumulated by the other. Even after a limited divorce, all income either party earns or property either party acquires will still be deemed “marital” and will still be subject to division by the courts. If one spouse dies after a limited divorce has been entered, the other spouse may still be entitled to inherit from the deceased spouse as if they were still together. Finally, while a Complaint for Limited Divorce documents the date of separation, the parties can still accidentally restart the clock if they resume living together or have sex after the limited divorce is complete.
For many couples, limited divorce is the answer to the financial and practical problems created by the 12-month waiting period before an Absolute Divorce can be filed. It helps the parties work out the logistics of shared physical custody, maintenance of the marital home (and who will live there), and how the family’s bills will get paid while the parties wait to qualify for an absolute divorce.
If you have grounds to file for an absolute divorce in Maryland there are very few reasons to opt for a limited divorce instead. Two exceptions may be where a dependent spouse relies on the other spouse’s health insurance, or religious reasons. In most cases, you should only file a limited divorce if you eventually want to receive an absolute divorce decree, but don’t yet meet the grounds for a no-fault divorce. Even then, if you and your spouse can come to an agreement, a mutual consent divorce will be faster and less involved than a limited divorce.
Even with all that said, there are still very valid reasons to file for a limited divorce in Maryland. If you and your spouse cannot agree on the terms of your divorce and you need to wait 12 months before filing for an absolute divorce, a limited divorce can help you streamline the process and make sure you and your children are provided for in the meantime. The most common reasons you might need a limited divorce are:
The 12-month waiting period must expire before a complaint for absolute divorce can even be filed. After that complaint is filed, parties often need to go through discovery, mediation, and a variety of motions to resolve the outstanding issues and a case can take many months. However, a limited divorce involves many of the same steps and can streamline some of the absolute divorce issues. Starting a limited divorce proceeding before you are eligible to file a complaint for an absolute divorce gets the ball rolling on these issues and increases the chances that your absolute divorce proceeding will resolve soon after it is filed.
If you have filed a limited divorce while you and your spouse were separated, it is quite likely that eventually, you will need to know how to file for absolute divorce in Maryland when you already have a case pending. Once the 12-month waiting period has ended, or the court has determined that fault-based grounds exist, you and your divorce attorney can file a petition to amend your complaint to change the case from a limited divorce to an absolute divorce. If your spouse was the one to file the initial complaint, you can accomplish the same thing by filing a counter-complaint for absolute divorce. This preserves the work you and your spouse have already done to resolve your issues, and lets you get your decree of absolute divorce entered faster, so that you can move on with your life.
At the Law Office of Shelly M. Ingram, our divorce attorneys know how hard it can be for divorcing spouses to get through the 12-month separation period. We know how to make a limited divorce work for you and your family, providing the support you need and making good use of your time so that when the waiting period is over, you are ready for your absolute divorce to be finalized. We will help you file all the necessary paperwork with the court, and negotiate a settlement with your spouse, saving you time, frustration, and money later on. You don’t have to work through your divorce alone. We will help you protect your rights and find a solution that works for you and your family. Contact us today to schedule a consultation with an attorney.